Environmental Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-4023
Applicant	City of Milford
Appeal Type	Second
PA ID#	009-47500-00
PW ID#	PW 247
Date Signed	2018-05-18T00:00:00

Conclusion:  The Applicant materially failed to comply with the clearly expressed historic preservation terms of the award.  Under the circumstances, FEMA acted within its discretionary authority in choosing to terminate the project without completing after-the-fact NHPA § 106 consultations.

 

Summary Paragraph

From August 27 to September 1, 2011, Tropical Storm Irene caused substantial damage to a coastal revetment in Milford, Connecticut.  On April 5, 2012, FEMA awarded PW 247, with total estimated project costs of $3,918,825.00 for the revetment’s restoration.  The award’s historic preservation special conditions required archaeological monitoring and tribal cooperation during the project in recognition of an elevated potential for Native American burial grounds to be located in the area of work.  During the project closeout in 2014, FEMA learned that the Applicant had not complied with the special conditions, and determined that there were likely adverse effects as a result of the non-compliance.  FEMA initially explored the possibility of remediating the adverse effects through consultations and a Memorandum of Agreement between affected parties pursuant to National Historic Preservation Act (NHPA) § 106 procedures, but instead deobligated all costs on June 15, 2017, based on the Applicant’s failure to adhere to the special conditions.  On first appeal, the Applicant conceded non-compliance, but argued that its failure was not “material” and thus did not trigger enforcement remedies under 44 C.F.R. § 13.43.  The Grantee further argued that FEMA could not terminate the award without first completing additional NHPA § 106 consultations.  On February 9, 2018, FEMA denied the Applicant’s first appeal.  On second appeal, the Applicant and Grantee reiterate their first appeal arguments, and further contest the appropriateness of FEMA’s choice of remedy.    

 

 

Authorities and Second Appeals

• 44 C.F.R. § 14.43(a).

• NHPA § 106.

• 36 C.F.R. §§ 800.1–800.6, 800.16(y).

• Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

• Reclamation Dist. #800, FEMA-1628-DR-CA.

Headnotes

• 44 C.F.R. § 14.43(a) authorizes enforcement remedies, including project termination, “as appropriate in the circumstances,” if a grantee or applicant “materially fails to comply with any term of an award,” whether or not the term itself was deemed material or central to the grant’s purpose.

  • The Applicant’s failure to comply or attempt compliance with the special conditions established a material failure, authorizing remedies.

  • Termination was an appropriate remedy, within FEMA’s discretionary authority, upon consideration of the adverse effects of non-compliance to historic properties, the clarity of the conditions’ terms, and the Applicant’s failure to comply, or attempt compliance.

• NHPA § 106 and its implementing regulations impose consultation procedures for federally funded or licensed undertakings with potential adverse effect to historic properties.

  • Here, FEMA’s enforcement action did not trigger NHPA § 106 requirements because project termination does not lead to the agency’s funding or licensing of an undertaking.

 

 

 

 

 

Appeal Letter

Appeal Analysis

Background

 

From August 27 to September 1, 2011, Tropical Storm Irene caused substantial damage to a coastal revetment in Milford, Connecticut.[1]  In response, the City of Milford (Applicant) applied through the Connecticut Department of Homeland Security and Emergency Management (Grantee) in December 2011 for a Public Assistance (PA) grant to restore the revetment to predisaster condition, with additional mitigation measures.

 

Upon receiving the request, FEMA initiated procedures required under the National Historic Preservation Act (NHPA) to identify and minimize the effects of federal undertakings on sites of historic significance.  FEMA subsequently learned of two Native American burial grounds in the revetment’s vicinity, excavated before World War II, which indicated an elevated potential for additional burial grounds and associated resources to be located in the project’s area of potential effect (APE).  In addition, pre-historic remains had recently been discovered in Branford, a town eight miles north, as a result of damage caused by Tropical Storm Irene.  Accordingly, the State Historic Preservation Officer (SHPO) recommended archaeological monitoring during the repairs, and the Mohegan Tribal Historic Preservation Officer (THPO) requested to be notified of these efforts and be provided an opportunity to participate if necessary.  With these conditions included in the project’s Record of Environmental Considerations (REC), the SHPO and THPO raised no objections to FEMA’s ultimate determination that no historic properties would be affected, which allowed the restoration project to move forward.

             

On April 5, 2012, FEMA awarded Project Worksheet (PW) 247 with total estimated project costs of $3,918,825.00.  In addition to the more general condition of compliance with all federal, state, and local laws, FEMA included the following special conditions in the REC:

 

[1.] During all excavation, the project shall be monitored by a qualified professional archaeologist.  Following completion of the field efforts, the monitor shall prepare and provide to the [SHPO] a technical memorandum summarizing the monitoring efforts. . . .

 

[2.] Prior to work beginning, the Mohegan Tribal Government shall be notified of the work schedule and be provided the opportunity to monitor the project.  The Tribe will also be provided with the name and contact information of the qualified professional archaeologist that will be monitoring the project.[2]

 

Between December 2013 and February 2014, the Applicant worked with the Grantee to submit its final projects accounting to FEMA for the completed restoration, with incurred costs totaling $2,070,106.02.  However, the Applicant did not indicate whether it had complied with the special conditions documented in the REC.  When FEMA requested evidence demonstrating compliance, the Applicant revealed that its contractor did not enlist an archaeological monitor, and thus, the Applicant did not comply with either of the special conditions.[3]

 

Discussions ensued between the Applicant, Grantee, SHPO, and FEMA’s Region I Environmental & Historic Preservation Office (EHP) regarding the possibility of mitigating any adverse effects resulting from the Applicant’s non-compliance.  The Applicant identified two parcels of land within its jurisdiction likely to contain intact archaeological remains and proposed placing those parcels into an archaeological preserve through a Memorandum of Agreement (MOA) between the Applicant, FEMA, and the SHPO.  In a letter dated August 11, 2016, EHP explained to the Advisory Council on Historic Preservation (ACHP) that the Applicant did not adhere to the special conditions, and as a result, there were likely adverse effects to historic property in the APE.  EHP extended an invitation to the ACHP for potential consultations during the development of an MOA that could facilitate funding for the completed project, noting that formal negotiations had not yet begun.[4]  The ACHP declined the invitation, but reserved the right to participate at a later date.[5]

 

On June 7, 2017, FEMA’s Disaster Recovery Manager (DRM) issued a Determination Memorandum terminating the project and denying all costs under Title 44 Code of Federal Regulations (44 C.F.R.) § 13.43, because the Applicant materially failed to comply (and ensure its contractor’s compliance) with the special conditions set forth in the REC and therefore changed the scope of work (SOW) without prior FEMA approval.[6]  The DRM stated that while FEMA had explored the possibility of pursuing consultation and an after-the-fact MOA to address adverse effects, it ultimately chose not to.  FEMA deobligated all funding from PW 247 on June 15, 2017.

 

First Appeal

 

In its first appeal letter dated August 3, 2017, the Applicant conceded that it failed to comply with the REC special conditions, but argued that this failure did not amount to a “material” breach so as to justify or necessitate the disallowance of all project costs.  In attempting to define the term “materially” in 44 C.F.R. § 13.43, the Applicant cited to general “material breach of contract” principles, which focus on whether the breached term was “so important that it vitiates or destroys the entire purpose for entering into the contract.”[7]  The Applicant viewed the purpose of the grant to be restoration of the revetment, rather than archaeological monitoring.  The Applicant also argued that no party to the contract had been injured, that the Applicant took good faith efforts to mitigate the breach, and that outside parties could be adequately compensated, as demonstrated by a letter from the Mohegan tribe expressing support for the proposed MOA.[8]  According to the Applicant, these considerations weighed against a “material breach” finding. 

 

The Grantee transmitted the Applicant’s first appeal in a letter dated August 3, 2017.  The Grantee supported the Applicant’s position, and further argued that FEMA failed to comply with NHPA § 106 by terminating the restoration project before exhausting NHPA consultation requirements.  Moreover, the Grantee contended that termination was an overly punitive remedy under 44 C.F.R. § 13.43, contrary to the goals of FEMA’s PA and EHP programs.

 

On October 15, 2017, FEMA sent the Applicant and Grantee a Final Request for Information (RFI), asking for additional information to demonstrate that they did not materially fail to follow the terms and conditions of the award and the requirements of numerous specified regulations,[9] and/or that the enforcement remedy was inconsistent with any law, regulation, or policy.  In response to the Final RFI, the Applicant drew attention to, and provided documents for, a FEMA funded project in 1994 to restore the same revetment, noting that FEMA did not require archaeological monitoring for that project.  The Grantee did not provide any additional information.

 

On February 9, 2018, the Acting Regional Administrator (RA) denied the Applicant’s first appeal.[10]  Specifically, the Acting RA found that the Applicant’s “complete failure to comply” or even “attempt to comply with” any of the special conditions constituted a material failure under 44 C.F.R. § 13.43.[11]  The RA rejected the Applicant’s reliance on breach of contract principles to define the term “materially,” finding the Applicant’s definition incompatible with the regulatory text and basic principles of federal appropriations law.  Instead, the Acting RA cited to authorities which define “materially” to mean “significantly” or “considerably.”[12]  The RA also found a material failure on the part of the Applicant and Grantee to comply with regulations requiring applicants to ensure contractor compliance and receive approval for SOW changes, and requiring grantees to ensure and certify applicant compliance with grant terms and conditions.[13]

 

The Acting RA determined that deobligating all funding was justified after consideration of relevant factors, such as the clarity of the project’s conditions and any good faith efforts to comply, and prior FEMA decisions terminating projects for non-compliance with EHP conditions.[14]  The Acting RA also determined that FEMA was not obligated to complete the NHPA § 106 consultation process before deobligating funding, because agencies are only required to follow section 106 procedures when awarding a project or approving a change in the SOW, not when terminating a project or withdrawing funding.  In addition, the Acting RA noted that EHP staff lacked the authority to bind FEMA to complete consultations or enter an MOA.  Finally, the Acting RA found that the previous 1994 revetment project cited by the Applicant was immaterial because FEMA’s prior inaction did not preclude its authority to impose special conditions in a separate project, and the decision to include those conditions was well-supported and distinguishable from its prior decision not to do so.

 

Second Appeal

 

In its second appeal, dated April 6, 2018, the Applicant reiterates its “material breach” arguments, as well as previous arguments about the unnecessarily punitive nature of FEMA’s decision.  In addition, the Applicant contends that its failure to request a change in the SOW was unintentional and therefore not a material failure to comply with the project’s terms.  Lastly, the Applicant maintains that the fact that no historic resources were discovered during the 1994 project, which disturbed the exact same area, reduces the importance of the special conditions at issue in this appeal and renders inapposite any comparisons to the town of Branford, which contained a previously undisturbed area more likely to still contain archaeological remains. 

 

The Grantee transmitted the Applicant’s second appeal via letter dated April 9, 2018.  In support of the Applicant’s second appeal, the Grantee reiterates its argument that FEMA’s decision was inconsistent with NHPA § 106.  It also maintains that its good faith and that of the Applicant weigh against a “material” finding that would warrant an enforcement action.  Finally, it argues that FEMA failed to analyze whether its choice of remedy was “appropriate in the circumstances,” as required by 44 C.F.R § 13.43, and did not appropriately consider the views of all involved parties: the SHPO and Mohegan tribe, FEMA’s own EHP team, and the ACHP.

 

Discussion

 

Material Failure

 

44 C.F.R. § 13.43(a) authorizes FEMA to pursue enforcement remedies “[i]f a grantee or subgrantee [i.e., applicant] materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere.”[15] 

 

The Applicant concedes that it failed to comply with the REC terms of PW 247, but argues that this failure was not “material” under 44 C.F.R. § 13.43 because the terms were secondary to the underlying restoration purpose and unnecessary in light of an earlier restoration project in the same area that failed to reveal archaeological resources.  In support, the Applicant cites to general principles of contract law material breaches, which focus on whether the entire purpose of a contract has been vitiated.  However, 44 C.F.R. § 13.43 authorizes enforcement remedies when an Applicant “materially fails to comply with any term” rather than the grant as a whole,[16] and not “any material term.”  Therefore, the Applicant’s focus on the underlying restoration purpose of the grant or the importance of each individual term, in light of prior circumstances, is misplaced.[17]

 

The Applicant’s interpretation also fails to recognize important differences between contracts and grants.  The restoration effort’s overall success and the extent of injury or possible compensation to individual parties, however relevant to a breach of contract analysis, are not dispositive considerations for an award whose purpose is geared toward national policies (such as historic preservation) in the general public interest, rather than services rendered for the contractual benefit of any individual party.[18]  If FEMA accepted the Applicant’s reasoning, applicants could violate various grant conditions and cross-cutting legal requirements and incur no consequences as long as they satisfied the restoration purpose of the grant.

 

For these reasons, the Acting RA’s definition of “materially” as meaning “significantly” or “considerably”[19] better comports with the structure of the regulatory text and basic principles of federal appropriations law.  In this case, whether intentionally or not, the Applicant completely failed to satisfy each special condition, without attempting to comply.[20]  Thus, the Applicant’s actions amounted to a “significant” or “considerable,” and thus “material,” failure to comply with the terms of the award, and FEMA was authorized to take an enforcement action.

 

Enforcement Remedy

 

Consistent with FEMA’s discretionary authority to provide financial assistance under the Stafford Act,[21] 44 C.F.R. § 13.43(a) authorizes FEMA to exercise its discretion in selecting an enforcement remedy that is “appropriate in the circumstances,” with termination and disallowance of funding as available options.[22]  While “funding generally is not eligible” for a project that is initiated or completed before FEMA is able to conduct the necessary EHP compliance review,[23] the decision on whether to terminate a project when an applicant fails to comply with a condition, imposed after a full EHP compliance review, is made on a discretionary “case by case” basis, “balancing the competing interests of supporting the community’s recovery efforts despite mistakes in executing the grant with the importance of ensuring grantees and applicants properly perform their roles in ensuring federal funds are spent in accordance with the terms of the grant.”[24]  In evaluating whether an agency has abused its discretion, including in regard to a decision on whether to authorize funding for a construction project, courts look to “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”[25]

 

Here, the Acting RA found that the decision to terminate the project in full was within the bounds of his discretion, consistent with the remedies set forth in 44 C.F.R. § 13.43, and fully supported after consideration of relevant factors and circumstances, including 1) the adverse effects to historic properties and archaeological resources, 2) the clarity with which FEMA had communicated the special conditions in the REC, and 3) any good-faith efforts to comply with those conditions.[26]  These factors reflect concern for both mitigating circumstances, which may permit FEMA to excuse mistakes in light of the interest in supporting recovery efforts, and aggravating circumstances, which undermine FEMA’s efforts to ensure that federal funds are spent in accordance with grant terms. 

 

In particular, the Acting RA and DRM found that 1) the Applicant’s non-compliance “prevented FEMA from [being able] to avoid, minimize, or mitigate the adverse effects at this archaeologically sensitive project location”;[27] 2) the special conditions were “clearly communicated at the time of award”; and 3) despite after-the-fact mitigation efforts, the Applicant “did not take appropriate, reasonable steps to include in its construction contract the requirement for an archaeological monitor to be present and did not monitor the contractor to ensure compliance with that condition,” thereby “fail[ing] . . . to even attempt to comply” with the conditions. [28]  The Acting RA also determined that the Applicant’s non-compliance frustrated the underlying purpose of the award, which was the restoration of the revetment in a manner that ensured the protection of archaeological resources.[29]  In short, despite the Grantee’s claim that the Acting RA did not adequately analyze whether termination was appropriate in the circumstances, the RA’s decision to terminate the project was based on an adequate consideration of relevant factors and circumstances, and was therefore a valid exercise of FEMA’s discretionary authority.

 

 

National Historic Preservation Act § 106 Compliance

 

Section 106 of the NHPA requires that federal agencies take into account the effects on historic properties of undertakings[30] over which they have direct or indirect jurisdiction, prior to approving Federal funds or issuing a license for such undertakings, and that they consult with the ACHP and potentially affected tribes accordingly.[31]  This process is initiated if and when the agency determines that a Federal action is an undertaking and has potential to cause effects on historic properties.  Federal agencies must complete the process “prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.”[32]  If the agency finds that there are no historic properties present or that the undertaking will have no effect upon them, and the SHPO and/or THPO do not object within 30 days, the agency’s official NHPA § 106 responsibilities are fulfilled.[33]  If an undertaking is found to have an adverse effect, the agency official shall consult further to resolve the problem, including through alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties.  The results are then memorialized in an MOA.[34]  Issuing a “decision to terminate [an undertaking] before completing [previously initiated] consultation procedures required under the [NHPA] does not render [an agency’s] decision arbitrary and capricious.”[35]

 

FEMA initially concluded in its REC that there were no historic properties affected by the revetment restoration, and the agency received no objection to this finding from the SHPO and THPO.  At that point, FEMA satisfied its NHPA § 106 obligations for this federally assisted undertaking.  Upon FEMA’s subsequent finding of potential adverse effects to historic property resulting from the Applicant’s non-compliance,[36] further consultation may have been necessary to resolve any adverse effects before FEMA could approve funds for the project.[37]  For this reason, FEMA explored the possibility of after-the-fact consultations and a potential MOA.  However, FEMA’s subsequent decision to terminate the project ended its involvement in any undertaking, i.e., a “project, activity, or program funded . . .  under the . . . jurisdiction of a federal agency.”[38]  Since an undertaking must be present to trigger NHPA § 106 consultation requirements,[39] the decision to terminate the undertaking also extinguished FEMA’s remaining consultation obligations.

 

The Grantee contends that FEMA restarted NHPA consultations when it sent a letter to the ACHP regarding the possibility of an MOA, and that FEMA was then obligated to complete this process prior to terminating the project.  As the Acting RA correctly noted, FEMA did not make any formal or informal representations committing itself to completing consultations.  Absent any such binding agreement, the simple act of reaching out to parties for input does not commit FEMA to exhausting every step of the NHPA § 106 process before it may then exercise its discretionary authority to deny funding for a project.  Indeed, no legal authority supports this proposition.[40]  Instead, FEMA is only required by regulation to “complete the section 106 process ‘prior to the approval of any funds on [an] undertaking,’” and need not complete consultation, whether or not already initiated, if it decides not to approve such funds.[41]  Therefore, even assuming that FEMA restarted consultation procedures, it was under no obligation to complete them when it terminated the project.

 

Conclusion

                  

By failing to retain an archaeological monitor for its revetment restoration work, or take any steps to ensure the presence of one, the Applicant materially failed to comply with the clearly expressed terms and conditions of PW 247.  Under the circumstances, FEMA acted within its discretionary authority in choosing to terminate the project without completing after-the-fact NHPA § 106 consultations.  Accordingly, the Applicant’s second appeal is denied.

 

 

[1] The revetment, located along the coast of the Long Island Sound in an area of Milford named Fort Trumbull Beach, is approximately 1,090 feet long and consists of armor stone on a sloped embankment approximately 25 feet high.  It protects Trumbull Avenue and private homes along the avenue from wave action and flooding.

[2] FEMA Record of Environmental Consideration (REC), Project Worksheet 247, City of Milford, at 4-5 (Mar. 22, 2012).

[3] There were two additional REC special conditions that only became relevant in the event that archaeological resources were discovered.  Id.  As such, these additional conditions are not at issue in this appeal.

[4] Letter from Deputy Reg’l Envtl. Officer, FEMA Region I, to Program Analyst, Advisory Council on Historic Pres. (ACHP), at 5 (Aug. 11, 2016) (hereinafter Letter to ACHP).

[5] The NHPA and its implementing regulations require agency officials to notify the ACHP of an adverse effect finding and to invite the ACHP to participate in consultations to resolve the adverse effects.  See infra note 34.

[6] Letter from Disaster Recovery Mgr. (DRM), to Dir., Conn. Div. of Emergency Mgmt. & Homeland Sec., and Recovery Coordinator, City of Milford (June 7, 2017) (hereinafter Determination Memo).

[7] Letter from City Attorney, City of Milford, to Dir., Conn. Div. of Emergency Mgmt. & Homeland Sec., at 4-5 (Aug. 3, 2017) (citations omitted).

[8] See Letter from Mohegan THPO, Mohegan Tribal Gov’t, to Dir. of Fed. Agency Programs, ACHP (June 29, 2017).  The Grantee noted that the SHPO also submitted a letter supporting the Applicant’s position.  See Letter from Deputy SHPO, Conn. Dep’t of Econ. & Cmty. Dev., to Acting Reg’l Adm’r (RA), FEMA Region I (June 30, 2017).

[9] The Final RFI identified possible material non-compliance with 44 C.F.R §§ 13.30, 13.36, 13.40, and 206.205.

[10] Letter from Acting RA, FEMA Region I, to Dir., Conn, Div. of Emergency Mgmt. & Homeland Sec., and City Attorney, City of Milford (Feb. 9, 2018) (hereinafter First Appeal Decision).

[11] Id. at 10.

[12] Id. at 10 & n.54 (citing Black’s Law Dictionary 1066 (9th ed. 2009); Webster’s Third New Int’l Dictionary (1961)).

[13] Id. at 11 (citing Title 44 Code of Federal Regulations (44 C.F.R.) §§ 13.30, 13.36, 13.40, 206.205 (2012)).  The Acting RA cited to the 2012 codification of the federal regulations instead of the applicable 2010 one.  However the pertinent regulations remained unchanged between those editions.

[14] Id. at 12 & n.58 (citing FEMA Second Appeal Analysis, Twp. Of Rapidan, FEMA-1941-DR-MN (Sep. 14, 2016); FEMA Second Appeal Analysis, Reclamation Dist. #800, FEMA-1628-DR-CA (Mar. 15, 2016); FEMA Second Appeal Analysis, Vill. Of Pardeeville, FEMA-1768-DR-WI (Dec. 16, 2014); FEMA Second Appeal Analysis, Houston Cty., FEMA-1835-DR-AL (Feb. 13, 2013)).

[15] 44 C.F.R. § 13.43(a).

[16] Compare 44 C.F.R. § 13.43(a) (authorizing enforcement remedies when an applicant “materially fails to comply with any term”) (emphasis added), with 44 C.F.R. § 13.40(d)(1) (requiring notification to FEMA of problems that will “materially impair the ability to meet the objective of the award”) (emphasis added).

[17] Arguments regarding the wisdom or necessity of imposing special conditions in light of the earlier project were better suited for the initial consultation stage, where FEMA could have weighed the relevance of prior projects and the recent Branford developments.  On appeal, the material inquiry is limited to the extent of non-compliance.

[18] See 2 U.S. Gov’t Accountability Office, Office of Gen. Counsel, Principles of Federal Appropriations Law, ch. 10, at 6-13 (3rd ed. 2006).

[19] First Appeal Decision, at 10 & n.54 (citing Black’s Law Dictionary 1066 (9th ed. 2009); Webster’s Third New Int’l Dictionary (1961)).

[20] The Applicant does not challenge or address FEMA’s determinations that it did not take reasonable steps to include in its contract the requirement for an archaeological monitor to be present while construction took place and did not monitor its contractor to ensure compliance, as per the procurement requirements of 44 C.F.R. § 13.36.  See First Appeal Decision, at 11. 

[21] See The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288 § 406, 42 U.S.C. § 5172 (2006) (“The President may make contributions . . . .”) (emphasis added).  

[22] 44 C.F.R. § 13.43(a); see also Twp. of Rapidan, FEMA-1941-DR-MN (concluding that FEMA acted within its discretionary authority to fully deobligate a PW when an Applicant materially failed to comply with REC conditions).

[23]See Vill. of Pardeeville, FEMA-168-DR-WI, at 3 (denying funding for an improved project when the grantee requested approval after work had already been completed and before FEMA could conduct necessary EHP review); see also 36 C.F.R. § 800.1(c) (2010) (“The agency official must complete the section 106 process ‘prior to the approval of the expenditure of any Federal funds.’”).

[24] Reclamation Dist. #800, FEMA-1628-DR-CA, at 6.

[25] Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

[26] First Appeal Decision, at 14.

[27] Determination Memo, at 11; see also Letter to ACHP, at 5 (finding the undertaking “most likely resulted in an Adverse Effect to historic properties, assuming that such properties were present”).

[28] First Appeal Decision, at 3, 10-11.

[29] Id. at 14.

[30] An undertaking is “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including . . . those carried out with Federal financial assistance.”  36 C.F.R. § 800.16(y).

[31] The National Historic Preservation Act of 1966, §§ 101(d)(6)(B), 106 (codified as amended at 16 U.S.C. §§ 470a(d)(6)(B), 470f (2000)).  Section 106 is now codified at 54 U.S.C. § 306108 (2014).

[32] 36 C.F.R. §§ 800.1(c), 800.3(a); see also CTIA - The Wireless Ass’n v. FCC, 466 F.3d 105, 112 (D.C. Cir. 2006) (“whether the protections of section 106 are triggered turns on whether there has been an ‘undertaking.’”).

[33] 36 C.F.R. § 800.4(d)(1).

[34] Id. §§ 800.4(d)(2), 800.5(a), 800.5(d)(2), 800.6(a), 800.6(c).

[35] Yerger v. Robertson, 981 F.2d 460, 465 (9th Cir. 1992).

[36] See Letter to ACHP, at 5.

[37] See 36 C.F.R. § 800.5(d)(2) (setting forth procedures to address the adverse effects of an undertaking).

[38] 36 C.F.R. § 800.16(y).

[39] See 36 C.F.R. § 800.3(a).

[40] The ACHP also refused to endorse the Grantee’s position when asked for an advisory opinion on the matter.  See Letter from Assistant Dir., Office of Fed. Agency Programs, Fed. Permitting, Licensing & Assistance Section, ACHP, to PA Coordinator, State of Conn., Div. of Emergency Mgmt. & Homeland Sec. (July 31, 2017).

[41] 36 C.F.R. § 800.1(c); see also Yerger, 981 F.2d at 465.